Citation Nr: 9908509
Decision Date: 03/29/99 Archive Date: 04/06/99
DOCKET NO. 97-00 009A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased evaluation for scar of the right
palm with ulnar neuropathy, currently evaluated as 30 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. R. Gleeson, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1996 rating decision of the
Department of Veterans' Affairs (VA) Regional Office in
Cleveland, Ohio (RO) which continued the 10 percent
evaluation assigned for a scar of the right palm with minimal
residuals of injury to the palmar branch of the ulnar nerve.
During the course of this appeal, the RO recharacterized the
veteran's disability as a scar of the right palm with ulnar
neuropathy, and increased the evaluation assigned for that
disability to 30 percent, effective May 1996.
The record raises the issue of whether the veteran is
entitled to special monthly compensation under 38 C.F.R.
§ 3.350(a)(2), based on loss of use of the right hand. This
matter is referred to the RO for appropriate action.
The question of whether an extraschedular rating is warranted
for the veteran's service-connected scar of the right palm
with ulnar neuropathy is the subject of the REMAND portion of
this decision.
FINDING OF FACT
The veteran's scar of the right palm with ulnar neuropathy
does not cause severe incomplete paralysis.
CONCLUSION OF LAW
The schedular criteria for an evaluation in excess of 30
percent for the veteran's scar of the right palm with ulnar
neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code
8516 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that the evaluation assigned for his
scar of the right palm with ulnar neuropathy should be
increased to reflect more accurately the severity of his
symptomatology. As a preliminary matter, it is noted that
the veteran's claim alleges an increase in severity of the
service-connected disability, and is therefore a well-
grounded claim for an increased evaluation. See Caffrey v.
Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2
Vet. App. 629, 632 (1992). In addition, the Board is
satisfied that the record contains all evidence necessary for
an equitable disposition of this appeal on a schedular basis,
and to that extent, that the RO has fulfilled its duty to
assist the veteran in developing the facts pertinent to his
claim.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Ratings Disabilities (rating schedule).
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10
(1998). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (1998).
The RO granted the veteran service connection for residuals
of an in-service shrapnel wound in March 1953. This
disability is currently evaluated as 30 percent disabling
under 38 C.F.R. § 4.124a, Diagnostic Code 8516, which
provides, with respect to the major ulnar nerve, for a 40
percent evaluation for severe incomplete paralysis, and a 30
percent evaluation for moderate incomplete paralysis.
Reports of VA examinations conducted in August 1996 and
February 1997 reflect that the veteran's disability causes
some loss of motion, weakness, and sensory loss. In August
1996, the veteran had dorsiflexion to 30 degrees, palmer
flexion to 30 degrees, ulnar deviation to 20 degrees, and
radial deviation to 0 degrees. These findings indicate that
the veteran has less than 50 percent of the normal range of
wrist motion. See 38 C.F.R. § 4.71, Plate I (1998). The
veteran was able to approximate the right thumb with all but
the 5th fingertip, but was unable to approximate the
fingertips to the median crease. Tests showed motor strength
of 5/5 except for flexion of the right little finger which
was 4/5 and grasping strength of 3/5 on the right hand and
5/5 on the left. He was able to turn door knobs and push and
pull objects. He had decreased light touch and pin prick in
the right median distribution and was positive for Tinel's
sign on the right. In addition, a nerve study and x-rays
revealed that the veteran suffered from carpal tunnel
syndrome bilaterally and arthritis in the right hand and
wrist.
A second two-part VA examination in February 1997 resulted in
similar findings, however the examiner was asked to
distinguish between those symptoms attributable to the
service-connected disability, and those symptoms attributable
to nonservice-connected disorders. On hand, thumb and
fingers examination, the same difficulties in approximating
the fingers to thumb and median fold were observed as in the
earlier examination, although it was also observed that there
was an inability to approximate the left hand fingers to the
median fold to a lesser degree than the right hand. The
veteran had lesser strength in the right hand than left. The
medical examiner opined that the patient's inability to
aproximate the tips of the fingers to the median transverse
fold of the palm was unrelated to the scar on the right palm.
On peripheral nerve examination, the examiner observed
hypesthesia and some slight atrophy. The examiner found that
there was significant weakness to the right hand grip and
neurological evidence of both median and ulnar nerve
impairment. He attributed approximately 50% of the symptoms
to carpal tunnel syndrome and median nerve difficulties and
50% of the symptoms to the service-connected ulnar nerve
disability.
Although the veteran has some loss of motion, weakness and
sensory loss in the right hand as described above, he still
has substantial ability to move and use the right hand.
Furthermore, it was observed that he also has loss of motion
on his left hand, which indicates that the right hand loss of
motion is only partially attributable to the service-
connected disability. Indeed, the peripheral nerve medical
examiner opined that 50% of the veteran's right hand
difficulties were attributable to carpal tunnel and other
nonservice-connected disorders and 50% to his service-
connected scar of the right palm with ulnar neuropathy.
Thus, even if the veteran did have symptoms which could be
characterized as severe paralysis, he would not be entitled
to an evaluation of 40 percent, because his symptoms are only
half due to the service-connected disability. In summary,
because the veteran's disability, in combination with
nonservice-connected disorders, is productive of moderate
incomplete paralysis, an evaluation greater than 30 percent
is not warranted on a schedular basis.
ORDER
An evaluation in excess of 30 percent for a scar of the right
palm with ulnar neuropathy is denied.
REMAND
The veteran has alleged that due to his right hand disability
his hours at work have been reduced from 40 to 30 hours per
week. He maintains that his supervisor refuses to let him
work 40 hours per week on the grounds that he cannot handle
it. In light of these contentions regarding work
interference, the RO should consider the applicability of the
extraschedular provision, 38 C.F.R. § 3.321(b)(1), to the
veteran's disability. The RO also should advise the veteran
of the opportunity to provide employment records or other
evidence to substantiate his claim that his disability has
interfered with his employment. See Spurgeon v. Brown, 10
Vet. App. 194, 197 (1997).
Based on the foregoing, this case is REMANDED to the RO for
the following action.
1. The RO should afford the veteran the
opportunity to furnish employment records
and other evidence to support his claim
that his scar of the right palm with
ulnar neuropathy has caused marked
interference with his employment.
2. After completing the above
development, the RO should determine
whether the veteran's claim should be
submitted for extraschedular
consideration under 38 C.F.R.
§ 3.321(b)(1). If the benefit sought on
appeal remains denied, the veteran and
his representative should be furnished a
supplemental statement of the case, and
afforded an opportunity to respond
thereto before the case is returned to
the Board for further appellate review.
The purpose of this REMAND is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence he desires to have considered in connection with his
current appeal. No action is required of the veteran until
he is otherwise notified.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals
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